Can Jacinta Price sit in Town Council and Federal Parliament?

By ERWIN CHLANDA

Can Councillor Jacinta Price (pictured), preselected by the Country Liberal Party for Lingiari, be a Member of the House of Representatives and an elected member of the Alice Springs Town Council and at the same time?

There is no certainty of that, say both the Town Council and the Federal Department of Attorney General.

Even ignoring the seemingly insurmountable logistics of serving one of the world’s biggest electorates, and attending regular sessions in locations 2500 km apart, this puts on shaky ground the idea she may wish to do both jobs.

It has been floated by Daniel Davis, a well-informed and frequent commentator in the readers’ comment section of the Alice Springs News Online, and with a background in conservative political activism.

The issue may lead to a vacancy that may be expensive to fill in the Town Council or the House of Representatives, and may raise the question whether the CLP, still reeling from its massive election defeat, can get anything right.

In all previous cases, when a sitting council member contested a seat in the NT Legislative Assembly or a Federal seat, that member resigned at the time the election was called, and if unsuccessful, had the option of being re-admitted to the council.

If elected, the resignation stood.

The AG Department, responding to the News, refers to the High Court decision in the case of Steven Martin, mayor and councillor of the Davenport City Council, seeking to replace Jacqui Lambie (pictured) in the Senate when her dual citizenship was found to disqualify her from being a member of the Federal Parliament.

Says the AG Department: “Whether holding an office of councillor in a local government would disqualify a person from being chosen or of sitting as a senator or member under section 44(iv) of the Constitution will depend on the circumstances of the matter, including the terms of the legislation establishing the office.”

And this is what Town Council solicitor Chris Turner emailed to council CEO Rex Mooney: “In relation to standing for election as a member of the Senate or House of Representatives, there is no provision in the Local Government Act disqualifying a serving Elected Member from doing so or indeed sitting as a senator or member of either of those Houses.

“However, in doing so that Elected Member may offend against the first limb of section 44(iv) of the Australian Constitution providing that any person who ‘holds any office of profit under the Crown’ shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives of the Commonwealth Parliament.

“There are arguments each way that a person holding the office of an elected member in a council does or does not ‘hold an office of profit under the Crown’. I have my own view on the matter but it is for the Elected Member concerned to seek their own legal advice,” wrote Mr Turner.

It may well be a lot more complicated than that. Would the council automatically accept legal advice which Cr Price may obtain?

Or would due diligence require that council seeks its own? And how much would that cost?

Should Cr Price find that she can’t sit in both places at the same time, how would she choose? Would a full time political role, appropriately salaried ($195,130 a year plus perks as an MHR) be the deciding factor? (Councillors are paid an allowance of $15,343.80 a year.)

The council must fill a vacancy occurring with more than 18 months to run till its next election, calling a by-election that may cost the ratepayers up to $100,000.

The council has a four year term meaning the next election will be by August 2021. That is at least 21 months from November 2, 2019, the deadline for the Federal poll.

The News has asked the council whether it will take any action about Cr Price’s candidature. Mayor Damien Ryan says he will be seeking advice from Territory and Federal sources.

This is how the AG Department backgrounds the issues:

“The High Court considered the question of whether Mr Steven Martin was incapable [of] being chosen or of sitting as a senator under section 44(iv) of the Constitution in Re Lambie [2018] HCA 6. Mr Martin held the offices of mayor and of councillor of Devonport City Council in Tasmania at the time of the 2016 election and the time of the High Court’s decision.

“Section 44(iv) provides that any person who ‘holds an office of profit under the Crown … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives’. On 6 February 2018 the Court determined that Mr Martin was not disqualified under s 44(iv) and delivered its reasons for judgment on 14 March 2018.

“In reaching its decision the Court considered the nature of the offices of mayor and councillor under the Tasmanian Local Government Act 1993 and concluded that these were not offices of profit ‘under the Crown’,” the AG Department wrote to the News.

Warren Snowdon, a white native Canberran, was flown in to the NT with the full weight of the Labor machine on Capital Hill to cement him in the remote Aboriginal electorate which Labor cultivated in the Whitlam era.
I find it worrying that Labor has not produced an Aboriginal Territorian in all those years to replace an urban white man. I give full marks to local product Jacinta and her platform, regardless of whether she is Labor or Liberal.

@ Erwin: True, but here’s the thing. I have never expected Cr Price to serve out this four year term of Council. Surprise me by all means, but surprise me you will.
Am I bothered by this? If she resigns to take Yamba to Las Vegas, that would be one thing. But if she resigns to take her message of family responsibility to Canberra, that would be another.

By way of clarification, a council is not required to determine whether a serving Elected Member is qualified to sit in either House of the Federal Parliament.
It is only the High Court of Australia sitting as a Court of Disputed Returns that is able to make that decision, by reference to of section 44(iv) of the Australian Constitution.
Its decision has no bearing of the right of the Elected Member to continue to serve on the council.

Let’s assume three things.
The Turnbull government goes the limit and has an election in November, 2019. (If a week is a long a time in politics, 18 months is off the charts.)
Being a councillor in Alice does not qualify as an office of profit under the Crown. (If a mayor and councillor in Tasmania doesn’t, how could a different standard apply in the NT?)
Jacinta defeats Warren. (I still think that’s a big ask as winning his elections is just about all Warren has ever done, and he has consistently done that very well.)
So now we’re looking at Jacinta winning a Federal seat in November, 2019.
Before resigning from Council, she seeks legal advice to determine if she can hold down both jobs. This takes us into December after Council has risen for the summer break.
Council reconvenes at the end of January, 2020. At the request of Council, Jacinta asks for another month to realise her accumulated leave and to further consider her position. Having done so, she resigns from Council in February, 2020.
That takes us into the 18 month cut-off for a by-election, hence no by-election needed.
End of drama.